White v. Celotex Corp. (1990)

Our plain-English summary of White v. Celotex Corp. (U.S. Court of Appeals, Ninth Circuit, July 2, 1990).

Dorothy White, widow of Edward White, and their son Douglas sued Celotex and many other asbestos product makers and sellers in Arizona state court over Edward's death. The defendants removed the case to federal court. According to the family's affidavits, Edward remodeled buildings damaged by flood or fire from 1957 to 1983, removing insulation that contained asbestos. He was diagnosed with malignant mesothelioma at 62 and died in March 1984. The family could not find his former employers and could not identify any defendant as the maker or seller of a particular asbestos product he came into contact with. The district court granted summary judgment to the defendants and refused to ask the Arizona Supreme Court whether Arizona would adopt market share liability. The Ninth Circuit affirmed. It held that the defendants' general sale of asbestos insulation during those years was not evidence that they supplied the asbestos Edward encountered. It also found market share liability unsuited to asbestos, because asbestos fibers and products vary, and it said Arizona was unlikely to adopt the theory.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: U.S. Court of Appeals, Ninth Circuit
• Decided: July 2, 1990
• Citation: 907 F.2d 104
• Docket: No. 88-15634
• Stage: Appeal from summary judgment

Outcome. The Ninth Circuit affirmed summary judgment for Celotex and the other asbestos defendants against the widow and son of Edward White, and upheld the denial of certification of the market share liability question to the Arizona Supreme Court.

What the court held. A plaintiff must produce evidence of exposure to a particular defendant's asbestos product, and market share liability, adopted for fungible DES, is inappropriate in asbestos litigation and unlikely to be adopted by Arizona.

Issues decided: Wrongful Death and Survival, Trial Procedure and Discovery, Product Identification, Venue, Removal and Transfer.

The people and their exposure

• Edward F. White: mesothelioma; died

Who	Work	Where	When	Products
Edward F. White	remodeling buildings damaged by flood or fire (construction)	Arizona	1957-1983	pipe and block insulation

The defendants

• Celotex Corporation (manufacturer) · its asbestos trust
• Owens-Corning Fiberglas Corporation (manufacturer) · its asbestos trust
• Owens-Illinois, Inc. (manufacturer) · its asbestos trust
• Fibreboard Corp. (manufacturer) · its asbestos trust
• Armstrong World Industries, Inc. (manufacturer) · its asbestos trust
• Keene Corporation (manufacturer)
• Pittsburgh Corning Corporation (manufacturer) · its asbestos trust
• Rock Wool Manufacturing Company (manufacturer)

Later decisions citing this one

One later decision in our library cites this one:

• Black v. Abex Corp. (North Dakota Supreme Court, 1999). The North Dakota Supreme Court affirmed summary judgment for Allied-Signal, Borg-Warner, Chrysler and General Motors, dismissing Rochelle Black's market share and alternative liability claims.

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

907 F.2d 104 (1990)

Dorothy E. WHITE, as widow of Edward F. White, and Douglas E. White, as surviving son of

Edward F. White, Plaintiffs-Appellants,

v.

The CELOTEX CORPORATION; Owens-Corning Fiberglas Corporation; Owens-Illinois, Inc., an

Ohio corporation; Fibreboard Corp., a Delaware corporation; GAF Corporation, a Delaware

corporation; Armstrong World Industries, Inc., a Pennsylvania corporation; Man Raybestos

Manhattan, Inc., a Connecticut corporation; Nicolet Industries, a Pennsylvania corporation; Eagle-Picher Industries, Incorp.; Keene Corporation, a New Jersey corporation; Pittsburgh Corning

Corporation, an Ohio corporation; Combustion Engineering, Inc., a Delaware corporation; Amatex

Corporation, Garlock, Inc., a foreign corporation; Standard Insulations, Inc., a Missouri

corporation; Standard Asbestos Manufacturing and Insulating Company, a Missouri corporation;

Carey Canada, Inc., a foreign corporation, U.S. Minerals Products Co., a New Jersey corporation;

National Gypsum Co., Rock Wool Manufacturing Company, an Alabama corporation; H.K. Porter, a

Delaware corporation; Flintkote Company, Metalclad Insulation Corporation of Arizona; Williams

Insulation Co.; Williams Insulation Materials, Inc.; John Does, I-X, Black and White Corporations, I-XX; Raymark Industries, Defendants-Appellees.

No. 88-15634.

Argued and Submitted December 13, 1989.

Decided July 2, 1990.

United States Court of Appeals, Ninth Circuit.

[*105] Philip J. Hall, Dennenn L. Peterson, and Janice A. Wezelman, Miller, Pitt & McAnally, Tucson, Ariz., for plaintiffs-appellants Dorothy E. White and Douglas E. White.

Richard A. Hayden, and Rex Armstrong, Bogle & Gates, Portland, Or., for defendants-appellees Owens-Corning Fiberglas Corp., Owens-Illinois, Inc., Fibreboard Corp., Armstrong World Industries, Inc., Keene Corp., Pittsburgh Corning Corp., and Rock Wool Mfg. Co.

James H. Cook, and Robert E. Gallagher, Stutz, Gallagher & Antiano, San Diego, Cal., for defendant-appellee Celotex Corp.

Before HALL, BRUNETTI and NOONAN, Circuit Judges.

NOONAN, Circuit Judge:

Dorothy E. White, as the widow of Edward F. White, and Douglas E. White, as Edward's surviving son, (the Whites), brought suit in the state court of Arizona against the Celotex Corporation and a variety of other manufacturers, miners, importers, converters, compounders, retailers, sellers, or distributors of asbestos and products containing asbestos, (the Defendants). The Whites sought damages for the asbestos-caused death of Edward White. The Defendants removed the case to the federal district court. The district court granted summary judgment in the Defendants' favor. The Whites appealed. We affirm the judgment of the district court.

The Evidence Proffered by the Whites

Edward and Dorothy White were married in 1957. According to affidavits executed by Dorothy and Douglas, from 1957 to 1983 Edward's occupation consisted of remodeling buildings damaged by flood or fire. The work entailed the removal of insulation that contained asbestos. At the age of 62 he was diagnosed as having malignant mesothelioma, a cancer that is frequently caused by asbestos. He died of mesothelioma on March 6, 1984.

The Whites were unable to locate any of Edward's former employers. During the period of 1957 through 1983 the Defendants were engaged in selling insulation that contained asbestos, but the Whites were unable to identify any of the Defendants as having manufactured, sold or distributed any particular asbestos product with which Edward came in contact. PROCEEDINGS

The Whites moved to certify to the Arizona Supreme Court the question of whether Arizona would adopt the theory of market share liability in asbestos litigation. The Defendants moved for summary judgment. The district court held, first, that the Whites had failed to produce credible evidence that Edward White had been exposed to asbestos products and, second, [*106] that the Whites had failed to adduce any evidence of the Defendants' respective market shares of the asbestos market and any evidence as to the relevant time period in which to examine the question of market share. Accordingly, the district court entered judgment for the Defendants and denied the Whites' motion for certification. The Whites appealed. ANALYSIS

First. The Whites proffered no evidence that Edward White had been exposed to any particular product produced or distributed by the Defendants. The fact that Defendants were making or marketing asbestos between 1957 and 1983 did not constitute evidence that they had done so in relation to the asbestos in any building with which Edward White may have come in contact. For all that the Whites could show, even if their affidavits were given full weight, any asbestos affecting Edward White had been installed before 1957 and as to this period the Whites proffered no proof as to the activities of the Defendants. Hence, the Whites had no case against the Defendants.

Second. There was no reason to certify the question of market share liability to the Supreme Court of Arizona. There was, as already indicated, no evidence that the Defendants had been in the market at a time relevant to Edward's injuries. Secondly, the reasons why the theory of market share liability, adopted in California in relation to the drug DES, is entirely inappropriate in asbestos litigation, have been succinctly set out by Chief Judge Peckham in In re Related Asbestos Cases, 543 F.Supp. 1152 (N.D.Cal.1982):

1. Unlike DES, which is fungible, asbestos fibers are of several varieties, used in varying quantities in the various products that contain asbestos, and each is different in its harmful effect;

2. Asbestos is put to numerous uses;

3. Some of the products to which a plaintiff could be exposed would undoubtedly have been purchased out of the state prior to the exposure of the plaintiff; and

4. A plaintiff may be exposed to asbestos over a period of many years, during which time some of the defendants will have begun or discontinued the making and marketing of asbestos products.

See id. at 1158.

It is highly unlikely that the Supreme Court of Arizona would adopt in asbestos litigation a theory that it has not even adopted as to a single, fungible product. The question is not close and so the district court did not err in exercising its discretion to deny certification. See In re McLinn, 744 F.2d 677, 681 (9th Cir.1984).

AFFIRMED.

Sources

• The opinion on Google Scholar